Teply v. Ballard

922 P.2d 1236, 142 Or. App. 574, 1996 Ore. App. LEXIS 1173
CourtCourt of Appeals of Oregon
DecidedAugust 21, 1996
Docket93-3321-L-1; CA A89961
StatusPublished
Cited by1 cases

This text of 922 P.2d 1236 (Teply v. Ballard) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Teply v. Ballard, 922 P.2d 1236, 142 Or. App. 574, 1996 Ore. App. LEXIS 1173 (Or. Ct. App. 1996).

Opinion

LEESON, J.

Plaintiff1 brought this action for personal injuries sustained in an automobile accident and for loss of consortium resulting from injury to plaintiffs wife in that accident. After plaintiff and defendant settled the personal injury claim, they submitted plaintiffs loss of consortium claim to the trial court on stipulated facts. Plaintiff appeals from the court’s judgment for defendant, and we affirm.

On September 28, 1991, plaintiff, his wife and his son were injured while traveling north on Interstate 5 when the car in which they were riding collided head-on with a car driven by Elmo Viar (decedent) that was traveling south in the northbound lanes of that highway. Decedent had an insurance policy with liability limits of $25,000 per person and $50,000 per accident. Plaintiffs wife settled her claim for personal injuries with decedent’s insurer for $25,000. Plaintiff and his son brought an action against decedent’s personal representative for their personal injuries and for plaintiffs loss of consortium resulting from the injuries to his wife. The amended complaint sought recovery only within the limits of liability of decedent’s insurance policy. Before trial, plaintiff and his son settled their personal injury claims for $7,415. Plaintiff sought $17,585, the remainder of the per-accident liability limit, for his loss of consortium. Insurer denied coverage on the ground that plaintiffs “loss of consortium claim was subsumed under the bodily injury settlement” with wife. The parties stipulated that all factual issues had been settled and, by motion, requested a hearing to determine plaintiffs legal entitlement to recover for loss of consortium. The trial court entered judgment for defendant, holding that plaintiff was not entitled to payment under the insurance policy and that the policy does not violate Oregon’s Financial Responsibility Law, ORS 806.010 et seq.

Plaintiff first assigns error to the trial court’s ruling that insurer’s payment of $25,000, the per-person policy limit, to plaintiffs wife on her bodily injury claim “exhausts [577]*577the coverage resource leaving nothing” to cover his loss of consortium claim. According to plaintiff, his claim for loss of consortium is independent of his wife’s bodily injury claim and is therefore subject to the policy’s $50,000 per-accident liability limit. Defendant replies that the policy “only covers plaintiffs loss of consortium claim through the ‘each person’ limits applicable to his wife’s bodily injury claim.”

The insurance policy provides, in relevant part:
“DEFINITIONS
“D. ‘Bodily injur/ means bodily harm, sickness or disease, including death that results.
“PART A — LIABILITY COVERAGE
“INSURING AGREEMENT
“A. We will pay damages for ‘bodily injury’ or ‘property damage’ for which any ‘insured’ becomes legally responsible because of an auto accident. * * *.
“LIMIT OF LIABILITY
“A. The limit of liability shown in the Declarations for each person for Bodily Injury Liability is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of ‘bodily injury’ sustained by any one person in any one auto accident. Subject to this limit for each person, the limit of liability shown in the Declarations for each accident for Bodily Injury Liability is our maximum limit of liability for all damages for ‘bodily injury resulting from any one auto accident. * * *” (Boldface in original; emphasis supplied.)

In plaintiffs view, the “Limit of Liability’ section of the policy conflicts with the “Insuring Agreement” section, because the former expressly covers “types of damages that do not fall within the policy definition of bodily injury,” while the latter “implies that the insurer will pay only for ‘bodily injury.’ ” Both sections, he contends, “contradict the policy definition of ‘bodily injury.’ ” Consequently, he reasons, the [578]*578policy is ambiguous with respect to its coverage for loss of services and must be construed against defendant. See Totten v. New York Life Ins. Co., 298 Or 765, 771, 696 P2d 1082 (1985) (ambiguity strictly construed against insurer). Defendant does not dispute plaintiffs assertion that the insurance policy covers damages for loss of services but responds that the policy is unambiguous with respect to the applicable liability limit. According to defendant, the sole issue is whether plaintiffs loss of consortium claim describes a loss arising out of the bodily injury sustained by plaintiffs wife so that the per person liability limit applies or whether plaintiffs claim constitutes a bodily injury to him so that the per-accident liability limit applies. We agree with defendant’s characterization of the issue and its contention that the policy is unambiguous.

We construe the meaning of an insurance policy as a matter of law, giving effect to the intention of the parties as expressed by the terms and provisions of the policy as a whole. Hoffman Construction Co. v. Fred S. James & Co., 313 Or 464, 469-70, 836 P2d 703 (1992). Terms that are not defined are given their plain and ordinary meaning. Id. at 474.

The “Insuring Agreement” section states that the insurer will pay “damages for ‘bodily injur/ ” for which its insured is legally responsible. The “Limit of Liability” section specifies that the maximum amount that the insurer will pay for “all damages, including damages for * * * loss of services * * * arising out of ‘bodily injury’ sustained by any one person” is the per-person liability limit in the policy. “Bodily injur/’ is defined as “bodily harm, sickness or disease, including death that results.” Read together, those policy provisions describe the scope of coverage for bodily injury to one person as encompassing all legal damages that arise out of that bodily injury, including loss by others of the injured person’s services. The policy language also limits the insurer’s liability for those damages to the per-person liability limit.

An insurer may, as it has done here, define the scope of its coverage for bodily injury to include other harms that result from one person’s bodily injury, without defining those [579]*579other harms as bodily injury to a second person who has suffered the consequences. Viking Insurance of Wisconsin v. Popken, 102 Or App 660, 663, 795 P2d 1091, rev den 310 Or 547 (1990); cf. Allstate Ins. v. Handegard, 70 Or App 262, 267, 688 P2d 1387 (1984), rev den 298 Or 704 (1985) (where policy defines “bodily injury” to include loss of services, claim for loss of consortium by injured party’s spouse is subject to higher per-accident liability limit, because two people have suffered “bodily injury”). Plaintiffs loss of consortium claim is therefore subject to the per-person liability limit of $25,000 stated in the policy. Because plaintiffs wife settled her bodily injury claim for the full $25,000, the trial court did not err in concluding that coverage under the policy had been exhausted.

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Bluebook (online)
922 P.2d 1236, 142 Or. App. 574, 1996 Ore. App. LEXIS 1173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/teply-v-ballard-orctapp-1996.